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The travails of the ‘Windrush generation’ and the lessons for EU nationals

UK Minister of State for Immigration Caroline Nokes has set out the government’s commitment to support the “Windrush generation,” immigrants who migrated legally from British colonies or former colonies in the Caribbean between 1948 and 1973. The term “Windrush” derives from the name of the ship, the Empire Windrush, that brought the first arrivals in Britain’s post-war drive to fill a labor shortage. The ship carried 492 passengers, many of them children, from the Commonwealth country of Jamaica. Under the British Nationality Act, they and thousands who followed after, enjoyed British citizenship and full rights of entry and settlement. In 1962, however, British law changed to end the automatic right of entry and, throughout the 1960s and 1970s, as the Caribbean colonies gained independence—and their people different citizenship—a series of British laws further tightened immigration controls.

The story of Caribbean-born Britons took an inauspicious turn in 2012. Changes to immigration law that required documentation to work, rent a property or access benefits, including healthcare, left people fearful about their status. As it turned out, their fears were justified. Recent reports in the British press about longtime legal residents of West Indian and Caribbean ancestry losing their jobs, being denied medical care, being evicted, and even detained and threatened with deportation because they could not prove that they had lived in the country since before 1973 produced a public outcry and, on April 17, 2018, an apology from Prime Minister Theresa May.

The current “hostile environment”—aimed at making it difficult for illegal immigrants to settle in the UK—has meant that many people living in the UK legally are being asked to document their right to stay in the UK when trying to access healthcare, applying for a job, opening a bank account, or renting a property, and some of the Windrush generation who arrived here as children are finding it difficult to do so because they have never had a need to update their passports and immigration documents.

Their plight, however, is not dissimilar to that of EU nationals, who must also think about what documentation they can produce to prove their right to remain in the UK. There are thousands of EU nationals who do not hold passports and/or do not have a paper trail to evidence their nationality or time spent in the UK. Without such documents, they will find it difficult to meet the requirements to apply for residency documentation confirming their status. Such EU nationals will feel the same level of anxiety and experience the same hostile environment that the Windrush generation are contending with. However, for EU nationals there’s the added pressure of having to complete their application within six months of December 31, 2020, being the end of the implementation period. Those who fail to do so enter uncharted territory, as there is no information at present on what will happen to EU nationals who haven’t obtained new residency documents.

Guy Verhofstadt, the European Union’s chief Brexit negotiator, identified this very issue when speaking to The Telegraph for an article that appeared on April 18 on how the UK government’s handling of its Windrush citizens has led to fears that EU nationals could face similar problems. Verhofstadt said, “This could be worrying for millions of EU citizens in the UK who may fear that they could face similar treatment after Brexit.” He added that he expects that MEPs will be looking for safeguards for their constituents.

The UK government has accepted that the Windrush citizens are entitled to reside in the UK and to access public services, and has asserted its commitment to working with any individuals who do not have documentation to prove their right to be in the UK. A new dedicated Home Office team will help such individuals gather the evidence necessary to prove that they have been living or working in the UK, and when such evidence is gathered, will endeavor to resolve cases within two weeks and at no cost to the applicant. Unfortunately, however, while the Brexit talks have gone more smoothly as of late, there is not the same commitment between the UK government and EU governments to help EU nationals. Given the current climate of uncertainty, we are advising EU nationals and employers of EU nationals on their best course of action.

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The travails of the ‘Windrush generation’ and the lessons for EU nationals

Brexit latest: EU nationals who arrive during the post-Brexit transition period can stay

On February 28, the UK government announced that EU nationals who arrive in the UK after Brexit Day (scheduled for March 29, 2019), but before the end of the so-called “implementation” or “transition” period, will be able to stay permanently. This is a shift from the UK’s previous position that arrivals after Brexit Day would be entitled to remain on a temporary basis only and would become subject to immigration controls at the end of the transition period. While this announcement brings the UK closer to the EU’s stance on this matter, there are still some fundamental differences to be negotiated.

Overall this is positive news for employers, especially those who rely on EU talent, who will now have a longer period to build new talent pipelines to replace workers from the EU.

However, this concession may have come too late for some employers who have already lost valuable talent due to a general feeling of uncertainty among EU nationals and negativity around citizens’ rights. It remains to be seen whether this latest shift in negotiating position will be enough to convince EU nationals that the UK remains an attractive destination to work and build a career.

The UK’s original position was partly based on an assumption that EU nationals would rush to move to the UK before a given cut-off date. The dramatic fall in net migration from the EU since the referendum shows that there was never a risk of this happening.

EU nationals who arrive in the UK during the transition period will be subject to a registration system in line with what is already common practice in other EU member states. After accumulating five years’ residence in the UK an EU national will be able to apply for indefinite leave to remain (ILR), which will allow them to live in the UK permanently.

It should be noted that ILR is not the same as “settled status,” which EU nationals who arrive before Brexit Day will be able to apply for. The application process for ILR usually requires the applicant to satisfy minimum salary requirements, demonstrate English language ability and pass the “life in the UK” test. ILR is also more restrictive than settled status; for example, the holder of ILR will lose this status if they are absent from the UK for a period of two years, while for the holder of settled status, absence up to five years is permitted. It remains to be seen what the qualifying criteria for ILR in this situation will be, and whether a special procedure will be established that is more closely aligned to settled status.

Looking to the future, employers should also be encouraged by the following section of the announcement, which relates to a new immigration framework to be implemented post Brexit:

“… leaving the EU does not mean the end of migration between the EU and the UK. The new framework will therefore be designed to support the UK economy, enable businesses and key public sector workforces such as the National Health Service to access the skills they need, and underpin our trading relationships with partners in Europe and around the world.”

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Brexit latest: EU nationals who arrive during the post-Brexit transition period can stay

Brexodus continues

Net migration from the EU has plummeted from 165,000 in 2016 to 90,000 in 2017.

As expected, in the latest statistics released by the Office of National Statistics today, net migration from the EU has plummeted, with fewer EU nationals moving to the UK and more leaving:

2016 2017
EU nationals who immigrated to the UK 268,000 220,000
EU nationals who emigrated from the UK 103,000 130,000
Net migration +165,000 +90,000

This is of significant concern to industries and sectors that rely heavily on EU talent, with health and medical services, and farming and agriculture already dealing with considerable labour shortages.

The UK will officially leave the EU on March 29, 2019, and even though this is still over 12 months away, employers are already feeling the impact.

The other interesting statistic released today is the huge increase in EU nationals applying for British citizenship. In 2016 15,460 EU nationals applied for British citizenship—following the Brexit referendum this number more than doubled to 38,528 in 2017.

What we can take from both of these statistics is that the lack of certainty in citizens’ rights and future immigration policy following Brexit is forcing individuals to consider and protect their position in the UK. At one end of the spectrum we can see that EU nationals are securing their rights in the UK by naturalising as a British citizen, and at the other end EU nationals are reassessing whether the UK is the place to establish a life and career in the first place. Without certainty on citizens’ rights and future immigration policy we can expect these statistics to continue on the same trajectory.

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Brexodus continues

Stretched resources: immigration and gender pay equity

Two stories in the UK headlines today relate to stretched resources: The Home Office preparing its immigration system for life after Brexit, and the Equality and Human Rights Commission (EHRC) enforcing employers to publish information on their gender pay gap.

Immigration system

According to the British House of Commons, it is unlikely the UK will have an immigration system in place when Britain leaves the EU in March 2019. The government has not published its future policy. This is causing distress for EU citizens living in Britain, and for UK businesses that rely on EU citizens.

An estimated three million EU citizens will need to register as having the right to be in the UK. Border force agencies will struggle to carry out checks on EU citizens arriving in the country. Agencies like Visas and Immigration, Immigration Enforcement and other departments of the Home Office will also feel the impact of the extra caseload. These services are already finding it difficult to cope, resulting in occasional poor decision-making. Dentons has worked with clients to help overcome these poor decisions.

The UK government is due to publish a white paper on immigration policy; already postponed from last autumn, it seems unlikely to see release before March 2019. Ministers working on the white paper have said the delay is to consider the Migration Advisory Committee’s report due in September 2018. Dentons contributed to this report, so we hope to see the collated views of our clients reflected in the future shape of UK immigration rules.

Gender pay equity

By April 4, 2018 companies with 250 or more employees are required to report the gender pay gap in their workforces. Questions have already been raised about whether the gender pay gap regulations under the Equality Act have teeth to motivate business to properly comply. On top of this, it seems likely the EHRC will struggle with having sufficient resources to enforce the regulations.

However, EHRC Chief Executive Rebecca Hilsenrath has distanced the commission from the responsibility of ensuring compliance. She has described the EHRC to the Financial Times as a “strategic enforcer” that looks at novel points of law”, and “at cases which will clarify the law”, and “where impact lies.” Therefore, the EHRC does not see itself as taking on all breaches of the Equality Act.

This bears out in the EHRC’s budget information: The government is not allocating additional resources for work on gender pay reporting. The EHRC will seek to increase its budget if many companies fail to comply with gender pay reporting. Having already seen its funding cut by 25 percent in the 2016–2020 spending review, a crystal ball is probably not needed to predict how any request for a budget increase will be answered.

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Stretched resources: immigration and gender pay equity

Home Affairs Committee issues report: Building consensus around immigration policy

The Home Affairs Committee consists of 11 Members of Parliament drawn from the three largest political parties (Conservative, Labour and the Scottish National). It has been chaired by Yvette Cooper MP (Labour) since 2016.

The Committee is currently managing a number of immigration-related inquiries. The most relevant to business immigration are:

  • Home Office’s capacity to deliver immigration services post-Brexit (launched October 5, 2017), which explores the capacity of the Home Office to meet the demands that Brexit will present, such as whether it can process applications from the 3 million EU nationals currently residing in the UK. Evidence has been gathered and we are currently awaiting the Committee’s report.
  • Building a consensus around immigration policy (launched October 17, 2017), which looks into the public perception of immigration and how the government might go about achieving greater consensus on immigration policy.

On January 15, 2017, the Committee published its report on the latter topic: “Immigration policy: basis for building consensus.” Click the UK Parliament website to read (i) the report summary, (ii) the report conclusions and recommendations and (iii) the full report.

To summarize the report’s main themes:

  • There is a lack of trust in official data, targets and decision-making on immigration policy.
  • Rules are complex and hard to understand, and there is concern that they are not being enforced.
  • Stronger coordination is needed between immigration policy and labor market policy.
  • Action is needed to address the impact of immigration, including appropriate investment in housing, public services and integration plans.

As the saying goes, perception is truth. While immigration rules are arguably easier to understand now than prior to the introduction of the points-based system, if public perception is the opposite then there is work still to be done.

If we look at the last 15 years there have been a number of events that have had an impact on the perception of immigration, such as the global financial crisis, the EU’s expansion into Eastern Europe and, most recently, the referendum on exiting the EU.

The report makes a number of compelling recommendations to address the public’s negative perception of immigration. With inevitable changes due to Brexit we have an opportunity to develop an immigration system that will be viewed positively by the wider population.

Some of the recommendations that are most relevant to business immigration and employers are:

  • Scrap the current net migration target and replace it with a new framework of targets and controls based on evidence.
  • Publish an annual migration report on migration flows, the economic contribution from migration and the measures taken by the government to manage impacts and pressures.
  • Link immigration policy for work purposes to strategy for improving investment in domestic skills and training with the target of reducing dependency on migrant labor.

Assess whether over reliance on migrant labor in some low-skilled jobs is due to poor pay, terms and conditions, and what restrictions and controls are needed to prevent undercutting and exploitation.

 

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Home Affairs Committee issues report: Building consensus around immigration policy

Trade deals and immigration

How will future trade deals impact UK immigration policy?

With Brexit negotiations between the UK and the European Union progressing, the UK is keen to start trade talks with the EU as soon as possible. While a trade deal with the EU is a priority, other countries, including India and Australia, have expressed that, in the fullness of time, they also would like to negotiate their own trade deals with the UK.

The UK’s Brexit Secretary, David Davis, has stated that he is looking for a “Canada Plus Plus Plus” trade deal with the EU, a reference to the recent deal between the EU and Canada. Labor mobility is a key element of that deal, making it easier for certain skilled professionals from Canada to work temporarily in the EU, and vice versa.

We can also learn from other trade deals:

  • The Trans-Pacific Partnership (TPP) trade deal currently being negotiated between 11 Pacific Rim countries (notably not including the US, which withdrew from the pact) is also looking to include an element of labor mobility. For example, it is proposed as part of this deal that it will be easier for Australian employers to recruit people from Canada, Chile, Japan, Malaysia, Mexico and Vietnam by exempting them from the usual requirement of advertising the role to Australians as part of the immigration process. In return, Australians will get reciprocal access to the labor markets of these six countries.
  • Likewise, one of the outcomes of the Australia-United States Free Trade Agreement (AUFTA), which came into effect in 2005, was the US E-3 visa, which is available only to Australians. The E-3 visa is similar to the H1-B visa, however more generous in that it has a separate quota of 10,500, is renewable indefinitely and has the additional benefit of the spouse of the main visa holder being able to work. In contrast, the H1-B visa has a quota of 65,000 (for applicants of all other nationalities), is capped at six years and the spouse of the main visa holder is not able to work. Singapore and Chile enjoy similar preferential immigration routes to the US as a result of their free trade deals.

One of the key arguments for voting to leave the EU was that the UK would be able to negotiate its own trade deals. So what are our likely trading partners saying?

  • Australia has spoken of the need for “greater access” to the UK for Australian business people.
  • India has already stated that the UK will need to relax immigration rules and make it easier for professionals and presumably students from India to come to the UK.
  • The EU is another matter entirely with many competing priorities and parties. The degree of labour mobility post Brexit will depend on whether we see a “soft Brexit” or a “hard Brexit”, which is still very much to be decided.

What is certain is that any trade deal the UK negotiates after Brexit will be about more than goods and services. Labor mobility will be a key element and it is therefore inevitable that any future trade deals the UK agrees will have an impact on immigration policy.

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Trade deals and immigration

Immigration briefing papers

 

 

 

 

 

 

 

This week saw the publication of two briefing papers—one by Bernard Ryan, Professor of Migration Law at the University of Leicester (for the Immigration Law Practitioners Association (ILPA); and the other by the Institute of Public Policy Research (IPPR)—that make significant contributions to the ongoing conversation on immigration policy, particularly in light of the inevitable changes due to Brexit.

The ILPA briefing paper, “Who will remain after Brexit? Ensuring protection for all persons resident under EU law,” identifies gaps concerning both EU citizens and third-country nationals who, potentially, will be negatively impacted by Brexit as they are not included in the government’s current thinking. These groups include, for example:

  • EU citizens and family members resident outside the UK at the point of Brexit who have a history of residence in the UK and may need or desire to resume residence in the UK in the future; and
  • EU nationals whose primary residence is outside of the UK but who, for either business/work or personal reasons, have a second place of residence in the UK. Post Brexit, these individuals may fail the required residency requirements to obtain residence or settled status, given their high absences from the UK, and instead be treated as visitors to the UK, a status that would obviously not permit them to work in the UK.

A summary of the paper, together with the full version, is available here.

The IPPR paper, “An immigration strategy for the UK: Six proposals to manage migration for economic success,” addresses the need to link immigration with the strategic priorities of the UK, particularly economic ones, in a post-Brexit world, and to understand the role that immigration plays in meeting these. The six proposals referred to in the title are:

This paper serves to remind us of the enormous challenge facing policymakers as they seek to ensure that all affected parties are captured in their thinking and that adequate protections are included in both the withdrawal agreement and future UK immigration legislation.

  1. Immigration strategy should clearly differentiate between types of immigration.
  2. Immigration strategy should actively address geographical imbalances in the economy.
  3. Immigration strategy should be designed to spur innovation.
  4. Immigration strategy should forge a new compact between employers and government, as a means to achieving a high-pay, high-productivity economy.
  5. Immigration strategy should support the UK’s trade balance.
  6. Immigration strategy should promote equality and integration.

In the lead-up to what will inevitably be an overhaul of the immigration system due to Brexit, the IPPR paper reminds us of the opportunity this brings, and the need to be active in the ongoing immigration debate.

The full report is available to download at the IPPR website. (The four-page summary is well worth a read.)

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Immigration briefing papers

UK government updates on Settled Status

The UK government has published further details on how the new settled status scheme for EU citizens and their family members will work as the UK leaves the EU. In the technical document sent to the European Commission, the government has pledged that this new system will be streamlined, low-cost and user-friendly, and will be designed with input from EU citizens.

EU citizens will have up to two years following the UK’s exit from the EU to apply to stay in the UK and obtain settled status. Applications will be decided based solely on the criteria set out in the Withdrawal Agreement and there will be no discretion for refusal based on other reasons. The criteria are not, as yet, conclusive. However, the government has confirmed that they will be simple, transparent and will minimize the need for documentary evidence. Unsuccessful applicants will have a statutory right of appeal in line with current rights provided by the Free Movement Directive.

There are also plans to set up a voluntary application process to provide those currently residing in the UK with the option to get new settled status at their earliest convenience—a recognition of the administrative challenge of granting status to potentially over three million EU citizens and their families.

Negotiations between the UK and EU are ongoing.

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UK government updates on Settled Status

Scotland: A separate system for global mobility?

The Times has revealed plans by Scottish ministers to pave the way for a bespoke immigration system.

Scottish ministers are concerned that Brexit will lead to a fall in immigrant workers, who are vital to the Scottish economy. Alasdair Allan, the Scottish government’s Europe minister, raised this as an issue to the Europe Committee earlier this year. “The Scottish government,” he said, “will continue to call for a less restrictive and more humane system from the UK which recognises individual and demographic circumstances.”

Scottish ministers plan to present to the UK government next summer an “options paper” that will set out some concessions from the UK immigration system. The most far-reaching of the requested options could be Scotland having its own, points-based immigration system with Holyrood in control. At the other end of the spectrum, the Scottish government may simply look to expand the Scotland Shortage Occupation List or reintroduce a post-study work route to give foreign graduates the chance to stay in Scotland to find work. The Shortage Occupation List contains occupations the country has trouble filling from inside Scotland. Concessions are made to the usual immigration process to bring in workers for these roles from outside the EU.

We will bring you more details as they are disclosed.

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Scotland: A separate system for global mobility?

Safeguarding the status of EU citizens: UK and EU negotiation update

 

 

 

 

 

 

The EU and UK have concluded their fifth round of negotiations.

Progress has been made on coming to an agreement in relation to the rights of EU citizens living in the UK. Some points are still to be negotiated.

The UK has confirmed that its “settled status” scheme, to be introduced next year, will be streamlined, digital and low-cost. For EU citizens who have permanent residence documents, the process of updating their status to “settled status” will be more straightforward. There may not be a cost, but if there is it will be greatly reduced.

The UK government has confirmed that safeguarding the status of EU citizens in the UK, and of UK nationals in the EU, will remain a priority. Prime Minister Theresa May said this week, “We want you [EU citizens] to stay.”

Keep your eye on The Global Mobility Review blog for further developments.

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Safeguarding the status of EU citizens: UK and EU negotiation update